USA v Nolan [2015] UKSC 63

The Supreme Court has confirmed that section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA"), which requires employers to inform and consult with appropriate representatives where they are proposing 20 or more redundancies at one establishment over a 90-day period, did apply to the US government. This was the case despite the fact that the European Collective Redundancies Directive ("the Directive") contains a specific exemption for workers employed by "public administrative bodies". TULRCA did not contain an equivalent exemption and there was no obligation on the Court to interpret TULRCA in accordance with the Directive.

This case arose from collective redundancies arising from the closure of a US air base in Hampshire. Ms Nolan claimed that the US government had failed to inform and consult in accordance with section 188 of TULRCA because it had only begun consultation after the decision had already been made to close the base. She argued that where a business decision will inevitably lead to redundancies, meaningful consultation in compliance with section 188 must require the employer to consult about the business decision itself, because section 188 requires consultation about, inter alia, ways of avoiding the redundancies. This argument relied on the EAT's earlier decision in the case of UK Coal v National Union of Mineworkers EAT/0397/06. Rather than rely on the exemption which was available, the USA argued that TULRCA did not oblige it to consult about the operational decision leading to redundancies and in doing so effectively submitted to the Tribunal's jurisdiction.

Although the question of when the duty to consult is triggered was referred to the European Court of Justice in this case, the Court declined to make a decision on this issue because the Directive's exemption for public administrative bodies meant that it did not apply. The case has now returned to the Court of Appeal, which will have to decide, without the benefit of the ECJ's input, when the duty to consult is triggered. Although further appellate authority on this point will be useful, until we have a definitive ruling from the ECJ on the issue, the legal position will remain uncertain.

EAD Solicitors LLP and others v Abrams UKEAT/0054/15

The Employment Appeal Tribunal ("EAT") has confirmed that a corporate body is protected from unlawful discrimination by the Equality Act 2010 ("the EA").

Mr Abrams was a partner of EAD Solicitors LLP ("the LLP"). He set up a limited company (of which he was sole director and shareholder) to serve as a legal "person" and replace him as a partner of the LLP. Mr Abrams' services were supplied to the LLP by the limited company. When Mr Abrams approached retirement age, the LLP objected to his company continuing to be a member and supplying his services to the LLP. Mr Abrams and his company both claimed unlawful age discrimination under the EA. The LLP argued that only individuals can have the protected characteristics set out in the EA, and so only individuals can claim its protection.

The EAT held that this was wrong. The EA does not only protect individuals with protected characteristics; it protects "persons" against discrimination because of a protected characteristic. The discrimination must be caused by or related to a protected characteristic, but it doesn't have to be the claimant's protected characteristic. In accordance with the Interpretation Act 1978, "person" includes a body of persons corporate or unincorporate, and the EA does not contain any provisions indicating that the definition of "person" for the purposes of the discrimination legislation should be narrower. It is well understood that discrimination can be perpetrated by a corporate body as well as an individual, and the EA uses the same terminology of "person" to describe the perpetrator.

This decision is clearly an important one for businesses who use independent contractors via a service company arrangement, and emphasises that decisions relating to the hiring, engagement and termination of such contractors must not be related to protected characteristics (including those of the individuals supplied to work for the business by the service company).

The EAT has held that an Employment Tribunal is not required to refer to every single document or every piece of evidence it has before it when reaching its judgment.

In the first instance, Ms Boam issued an unfair dismissal claim against the NHS following her redundancy, which had been on the basis of voluntary retirement terms. In seeking to evidence the unfairness of her dismissal, Ms Boam claimed that the NHS had failed to offer her the opportunity to apply for two vacancies that became available during the redundancy process, for which she believed she was suitably qualified and experienced.

The Employment Tribunal dismissed her claims and the Claimant appealed on the basis that the Employment Tribunal had erred in law by failing to identify and/or reference the evidence before it upon which it founded its conclusions on the issue of suitable alternative employment and/or failed to provide any adequate evaluation of such evidence within the body of the Tribunal's reasons (for its decision).

The EAT dismissed the appeal. Whilst its reasons were someone unsatisfactory, the EAT found that the Employment Tribunal had explained the basis of its findings, albeit in a somewhat obscure way, noting that there was no need for an Employment Tribunal to refer to every single document or every piece of evidence.

Underwood v Wincanton Plc UKEAT/0163/15/RN

The EAT has confirmed that it is possible for a matter to be, prima facie, in the "public interest" for the purposes of a whistleblowing claim, even if it relates only to a contractual dispute between a group of employees and their employer.

Mr Underwood, along with other colleagues, complained to his employer, Wincanton PLC, about the unfair distribution of overtime. His grievance was dealt with but he was subsequently dismissed. Mr Underwood alleged that he had been dismissed because he made a protected disclosure in respect of the overtime allocation. The claim was struck out on the basis that the complaint was not a qualifying disclosure under section 43B(1)(b) of the Employment Rights Act 1996 because such a complaint, concerning only a group of workers with an identical grievance about particular terms of their contracts, could not meet the "public interest" test. Mr Underwood appealed the decision.

The Tribunal's strike out order had been made before the judgment in Chesterton [2015] IRLR 614 EAT and was inconsistent with it. Allowing the appeal, the EAT decided that, prima facie, it was at least possible for a matter to be "in the public interest" even if it was concerned only with a contractual dispute between a group of employees and their employer. The EAT's decision is now the subject of an appeal to the Court of Appeal (listed for October 2016). However, until that time, the decision should be followed and claims should meanwhile be tried (instead of automatically being struck out) to determine whether, in any particular case, a given Claimant had had a reasonable belief that the matter had been raised by him/her "in the public interest".

DORMA UK LTD v BATEMAN & ORS (2015)

An employer was granted a springboard injunction until trial to restrain its former employees from working for a competitor in the same roles, poaching its customers or employees and competing with it. It was also granted injunctive relief to protect the misuse of its confidential information.

The Claimant employer, Dorma UK Ltd, applied for a springboard injunction against four of its former employees, the first to fourth defendants ("D1-D4"), to restrain them from working for a new company, the fifth defendant ("D5"), and for injunctions against all the defendants protecting the use of its confidential information.

It was held that there was a serious issue to be tried and a real prospect of success for the employer at trial. Springboard relief was available to prevent economic loss caused by ex-staff taking unfair advantage of a breach of their contract terms. Its purpose was to restore a level-playing field and was not to punish wrongdoers but to protect Claimants. It was not confined to cases of breach of confidence but included breach of fiduciary duties. The burden was on the Claimant to show the competitive advantage, Devere Holding Co Ltd v Belgravia Wealth Management Europe Kft [2014] EWHC 3189 (QB) applied. The evidence gave rise to a strong inference that there had been an unlawful team move. It was highly significant that the jobs were offered before the new company's office was in place and that it had recruited an entire team from Dorma such that it could be inferred that Dorma's former employees must have communicated prior to the move. These facts entitled Dorma to a springboard injunction.

Dorma was also entitled to injunctive relief, restraining the defendants from using its confidential information. D1-D4 were required to return any confidential information and to delete copies. There was a serious issue to be tried as to whether the new company (D5) had been an unlawful beneficiary of D1-D4's misconduct and as such, the injunction included D5.